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Thursday, January 3, 2013

To Protect and Seal

The vast majority of the SCOV’s day-to-day business involves
the rather dry business of writing judicial opinions on clinical and esoteric
questions of law. Over time, the
consumption of these materials can lead one to believe that the entire process
of justice is as boring as the questions of procedure that seems to endless
emerge from the incessant appeals. But once
a session the SCOV seems to spit out an opinion, which proves that the Court
and its honorable authors are not mere judicial automatons stuck in an anonymous
paper chase, but fiery individuals possessed of wry humor and no small amount
of literary knowledge.

Today’s case bears such fruit. It involves a fractured SCOV, a whodunit
mystery—the facts of which lend themselves quite nicely to a conversation on Sherlock
Holmes—and an exchange of quotes between the dissent and the majority. But, dear Watson, let us begin with the
basics as the game is afoot.

The warrants at issue here stem from the Town of Essex’s investigation
into the disappearance of Bill and Lorraine Currier. As more recent disclosures have revealed, the
couple was abducted and murdered at random by a serial killer who travelled
from Alaska to Vermont with the sole and chilling purpose of killing
someone. Tragically, that someone turned
out to be the Curriers. As detailed here,
the crimes were both shocking and well outside of the normal expectations of
any law enforcement agency in Vermont.

These facts make today’s case all the more complicated in
its analysis of the public-right-to-know.
We know now that the police were grappling with a genuine whodunit, a
highly compromised crime scene (the murder site had been demolished and removed
to a landfill), and a suspect whose confessions were only meaningful to the
extent that he verified facts about the case known to police but not to the
general public (and whose cooperation seemed to hinge upon the police’s ability
to keep parts of the story confidential).

Of course, knowing the facts also spoils the legal issue. It is easy to conclude in light of the
post-release facts that the police were justified in requesting the seal and
that the trial court erred, but that is not the way the SCOV game works. It looks not to the outcome but to the facts
available to the trial court and the arguments that the State made in support
of its position. Late emerging details
that might justify such actions cannot become part of the appeal. This is particularly true here where the
analysis is essentially moot and the analysis conducted less for the particular
case then for the resolution of broader legal issues. But we are getting ahead of ourselves. Like any good mystery, we have to start with
the facts and clues that were available.

All the general public knew prior to the December 3d press
conference at the U.S. Attorney’s Office was that the Curriers had disappeared
and their whereabouts were unknown. They
had last been seen leaving work the evening of June 8, and were presumed to
have gone home after that. Their
abandoned car was found two days later less than a mile from their home. No one, it appears, understood the depths of
human evil to which the investigation was to descend.

When the Essex police commenced its investigation, it procured
eleven search warrants from the Chittenden Criminal Division. The Burlington
Free Press got wind of the investigation, and a reporter requested from the
court copies of several of the search warrants.
The next day the State requested that the trial court seal the warrants,
and their supporting materials. The trial
court denied both requests, as it could not make a decision until returns were
filed.

Roughly one week after the trial court denied these
requests, the Essex police filed returns for four search warrants, inventories
of items collected, and the affidavits filed to support the warrants. The State then renewed its request to seal
the warrants, although it had not yet made any arrests. The trial court denied this renewed motion,
and requested more information.

The State responded by making a third request, this time
filing as support an affidavit of an Essex detective (the “Lawton Affidavit”)
describing the information the State wanted to keep private, known only to
police and, of course, any suspects. This
included the condition of the Currier home, the whereabouts of some of the
Currier’s items (or their absence from the home), information on a potential
murder weapon, and evidence of the Curriers’ travel before they
disappeared. The State argued that to
release these materials would hamper its investigation and provide information
to suspects that would allow them to evade custody or provide false information
when questioned.

Three times was apparently not the charm in this particular
case for the State. The trial court
denied the State’s requests to seal the search warrant materials. It also denied the request to stay proceedings
for an evidentiary hearing and to stay proceedings pending an appeal, which the
State promptly filed. Before the
information could be released, though, the SCOV stepped in, held up its Supreme
hand, and stayed the trial court proceedings until it could resolve the appeal.

To make matters more complicated, while the appeal was
pending, Essex police procured its suspect, and the State immediately withdrew
its motion to seal the search warrant materials. The SCOV gave the Free Press the materials it wanted, and the case technically became
moot. This led the SCOV to ask the
parties whether they had any reason the Court should hear the case regardless
of its mootness, both the State and the Free
Press agreed: the same controversy could arise in the future with the same
results. More on this in a moment.

The meat of the SCOV’s lengthy opinion centers on the public
request for search warrant materials. The
parties raised several issues on appeal, but the SCOV dismisses a few offhand
because they weren’t raised below—a punt maneuver it also adopted in the 2001
case around which today’s case revolves: In
re Sealed Documents. The only
question the majority addresses in today’s case is whether the trial court abused
its discretion in denying the State’s request to seal the search warrant
materials. This requires examining Vermont’s
Rules for Public Access to Court Records (the “PACR Rules”) and their interplay
with the standard set out in In re Sealed
Documents for sealing search warrant materials.

A quick note, PACR rules are generated by the SCOV itself
and represent the judiciary’s self-imposed system for releasing or sealing
public records. As judicial documents,
court records are not subject to public records law. PACR generally tracks public records law, but
it diverges in several critical areas—primarily the question of sealing
(exempting) records from public disclosure.
More importantly, the PACR rules are self-imposed, which means that the
SCOV is in a different posture in this case.
Unlike statutory interpretation where the SCOV is obligated to find
legislative intent, the intent behind the PACR rules is the SCOV’s own
intent. And despite what Walker Percy says
of our deranged
age, we as a legal profession still cling to the idea that we are our own
best interpreters.

As the first order of business, the SCOV takes up the mootness
issue. Notwithstanding the State and the
FreePress’s interest in continuing, the SCOV has to make an independent
decision on whether there is an exception to the mootness doctrine which limits
courts to only deciding live issues and controversies. Where a controversy is resolved before a case
is decided, the need for the courts to decide the case becomes moot, and the
case is ordinarily dismissed. However,
where the same controversy has the potential to rear its ugly head again in the
future, and similarly evade judicial review by resolving itself before the
ponderous cogs of the judiciary can reach a conclusion, the court may decide the
case despite its mootness. The SCOV
majority notes that it is entirely possible the public will, in the future,
request access to search warrant materials before a suspect is arrested, and
that the State will ask that the materials be sealed to protect its ability to
investigate the crime. Thus, the majority
concludes this case satisfies the exception, and it had best resolve the legal
question posed by the present facts.

The relevant PACR Rule according to the majority is Rule 6, which
grants public access to all case records unless they fall under one of Rule 6’s
exceptions. The applicable exception
here is Rule 6(b)(15), which protects records and materials pertaining to the
issuance of a search warrant up until the warrant’s return is filed, unless a
court orders the records sealed. The Sealed Documents case provides a standard
for determining when a court may, in its discretion, seal search warrant
materials.

Under Sealed Documents,
a court must presume that, once a search warrant return is filed, the public
has a right to access the warrant and its supporting materials. The State can rebut this presumption by
demonstrating a “compelling need for confidentiality,” in other words a “harm,”
that justifies sealing or redacting portions of search warrant materials. In making its decision whether to grant a
request to seal or redact, a court must analyze each individual search warrant
and supporting record, consider alternatives to sealing or redaction, and make
precise, fact-specific findings as to what information in the records would
cause the harm the State claims.

Where the trial court went wrong in this case, says the
SCOV, is in failing to go through the exercise of specificity required by Sealed Documents with regards to each
piece of information and harm claimed by the State. So, the SCOV does the lower court’s job, examines
the State’s interests and the information presented in the Lawton Affidavit, and
in the process concludes that the trial court abused its discretion and got it
wrong.

Most of the SCOV’s discussion in this vein examines the
State’s interest in controlling, protecting, and exploiting “access to
information” to law enforcement’s benefit.
To initiate the discussion, the majority casually drops a Sherlock
Holmes quote from The Reigate Puzzle into
a footnote: “It is of the highest importance in the art of detection to be able
to recognize out of a number of facts, which are incidental and which
vital. Otherwise your energy and
attention must be dissipated instead of being concentrated.” As we shall see, the dissent picks up this
gem and rolls it into a Volkswagen-sized snowball to lob at the majority.

The majority notes that neither the trial court below, nor
the State’s opponent, the Free Press,
rebutted the State’s assertions that early revelation of investigative details
would harm its ability to fight crime. The
SCOV also notes that New Hampshire and Washington courts have both concluded
that the benefits of preventing information leakage during an investigation
outweigh the public’s interest in the details.

The majority briefly addresses the arguments raised by the American
Civil Liberties Union who filed a “friend of the court” brief in support of the
Free Press insisting that any harm to
police interests by release of these materials would have amounted to nothing
more than an “inconvenience.” Not so,
says the majority: to allow police to compare new facts against old facts not
yet known to the public is to ensure that police are both forewarned and
forearmed in conducting an investigation.
With confidentiality in hand, police can identify false confessors and
false leads when locating and interrogating potential suspects.

Distinctly lacking from the trial court’s decision, the majority
notes, was an in-depth consideration of investigative interference. The trial court concluded without much
examination that the release of the search warrant materials would not have
harmed the investigation. Instead, the
trial court chose to emphasize the public’s right to be privy to the details of
police investigations and hold law enforcement accountable. But, the majority notes, such interests are
already served by the Fourth Amendment’s safeguard against unreasonable
searches and seizures. The “incremental
value” of public knowledge is slight compared to the potential damage to police
interest in secrecy during an investigation.

Finally, the majority addresses the trial court’s conclusion
that the State’s claimed harms to its investigation were only “general
assertions” that could not interfere with a “completed search.” This ignores the fact, the majority says,
that “effective execution of past searches” was not the issue before the court
because the investigation was not yet complete.
In addition, the State did make
specific claims of investigative interference, and linked those claims to the
information presented in the affidavit that it wished to keep from public
knowledge.

While the State did not claim that the circumstances were
unique, all that is required, says the majority, is for the State to show
“exceptionally compelling” circumstances justifying sealing, such as the risk
of nullifying police advantage and risking “wasteful diversion and distraction
of investigative resources.” The
conditions in this case may be common to many investigations, but “commonality
renders the rationale no less specific.”
The majority concludes that the trial court’s decision was “summary and
unsupported,” and an abuse of discretion.

Justice Skoglund, with whom the majority agrees, and to whom
the Majority refers amusingly in a footnote as “Sister Skoglund,” chooses to
not “save [her] breath to cool [her] porridge,” and pens a concurrence. Justice Skoglund writes separately to express
her concern that the trial court’s decision risks treading dangerously upon the
toes of the Legislature, who has already exempted from its Public Access to
Records laws records produced during the “detection and investigation” of a
crime (under 1 V.S.A. § 317(c)(5)).

The concurrence notes that, unlike in Sealed Documents, where the victims were dead and the suspects in
custody, the victims here were still considered missing, and at the time of the
trial court’s decision there was no suspect in custody. These circumstances create a “heightened
interest,” and the concurrence would prefer that the PACR Rules not be used as
“a vehicle for public review of the work of law enforcement,” especially where
the Legislature has already determined that the public’s interest is served
with confidentiality during an investigation.

Keeping in mind the importance of maintaining separation of
powers, but acknowledging the necessity of occasional overlap, the concurrence
suggests that future courts considering questions such as those presented here
give weight to the Legislature’s decision to exempt from public access records
relating to a criminal investigation. The
concurrence would, if she could, expand the language of PACR Rule 6 to consider
the status of an investigation, pre- or post-arrest, ongoing or concluded, in
determining whether or not to seal records.

And so finally, after much ado, we arrive at the dissent. Justice Dooley, joined by Justice Johnson,
begins the dissent by noting that a different PACR rule should apply. The dissent argues that Rule 7(a), as opposed
to the majority’s Rule 6(b), is the relevant rule and its standard would create
a much higher threshold for the State to show that a seal was warranted. On this point, the majority disagrees. It finds the standard set forth in 7(a),
requiring a showing of “good cause specific to the case before the judge and
exceptional circumstances,” to be as demanding, and possibly less so, than the
standard set forth in Rule 6(b) and Sealed
Documents for determining when to seal search warrant materials.

But this justification and a flap about the meaning of the
reporter’s notes to the rule opens the dissent’s first salvo in footnote 14
where it notes that the majority’s choice of rule likely has more to do with
its desire for a different outcome than an straightforward application in Rule
7(a) would produce. Notwithstanding, the
majority’s attempt to equate the two standards, the dissent finds the distinction
compelling and bases its subsequent discussion on Rule 7(a)’s standard.

The theme of the dissent is a lack of detail. The dissent takes the State’s concerns, set
forth in the Lawton Affidavit, at face value.
It summarizes them as 1) a need to control non-public information in
order to discern credible from non-credible statements, and 2) a fear that
disclosing investigation status might allow suspects to evade capture. The dissent complains that the situation
presented in this case is predictably common to pre-arrest investigations, and
that the majority unnecessarily “embellishes” the State’s reasons without
explanation. The dissent finds the
majority’s approach destructive of the “established presumption of openness” on
which the PACR Rules are premised and intended to be applied.

As the dissent argues, the majority’s analysis leads to a
new standard that effectively flips the presumption of public records on its
head, favoring the seal and making the records presumptively confidential. This will, in turn, force the press and
public to show that disclosure would not likely harm the investigation—a burden
they are in no position to carry and unlikely to prevail under.

The dissent makes a fairly strong point. Search warrants will always be completed
before cases are solved, suspects will be at large, and the police will always
need to keep information private to distinguish between real and false
leads. If these are the bases for which
a search warrant can be sealed, then the majority is announcing a new standard
where the exception threatens to swallow the rule.

In support of its position, the dissent notes that neither
the majority nor the State were able to point to specific facts or localized
concerns in keeping the search warrants under seal. This leads the dissent to quote from Catch-22 to capture the vague generality
of the State’s case and the majority’s willingness to find specificity in a long,
but generic list of concerns. Not
satisfied with this literary point, the dissent breaks out the OED to school
the majority on the meaning of “specific.”
A lesson the other three justices no doubt appreciated.

The dissent builds upon this theme toward a crescendo. The majority has changed the standard and the
rules surrounding public disclosure of search warrants. It is this unannounced shift that truly
bothers the dissent and it announces as loudly and as clearly as possible that
it believes the rules have changed. In some
ways this section of the dissent appears resigned to the change but upset that
it is being smuggled into the law through an ostensible abuse-of-discretion
review. The dissent, at the very least,
simply seeks a clean and clear break. No
doubt the trial court bench, who will have to rule on these challenges in the
futures, wishes for the same.

Still, the dissent is not done. In what may be the most barbed footnote in a
decision remarkable for them, the dissent takes the Sherlock Holmes quote from
the majority and dissects it with a dose of graduate level literary criticism. As the dissent notes, Sherlock Holmes
depended on the details of a crime to be printed in the newspaper to conduct
his investigations. The dissent points
to several occasions when the solution or at least the beginning of the
solution came directly from Holmes reading the newspaper and catching a detail
or fact that eluded the police. The
dissent’s point is not entirely in jest or limited to literary one-up-man-ship.
Its larger point is that the police are
helped just as often as they are hindered by public dissemination of facts from
a crime scene. If the majority is going
to change the rules, it should consider the unanticipated consequences.

The dissent makes a few final notes. It is upset at the length of time it has
taken for this issue to process through the court system. As everyone notes, the decision comes after
the controversy. By the time the
decision was issued, the case was moot and no longer needed adjudicating. This will continue to happen, and it bothers
the dissent.

In the end, the dissent’s position is that a seal for
warrants should be a rare and well-justified request that should normally be
denied. The alternative is secret
warrants, which do not bode well for democracy, civil rights, or even basic
accountability. Yet, the dissent’s
issues are a vote shy of a majority, and so it remains more jeremiad than
jurisprudence. At least until the SCOV’s
next chance to review such requests.